United States v. Lymon

• Decision Date: 02 October 2018
• Docket Number: No. 17-2077,17-2077
• Citation: 905 F.3d 1149
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Davon LYMON, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

905 F.3d 1149

UNITED STATES of America, Plaintiff - Appellee,

v.Davon LYMON, Defendant - Appellant.

No. 17-2077

United States Court of Appeals, Tenth Circuit.

October 2, 2018

Marc Robert, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

C. Paige Messec, Assistant United States Attorney (James D. Tierney, Acting United States Attorney and James R.W. Braun, Assistant United States Attorney, on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before MATHESON, McKAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Defendant Davon Lymon challenges the procedure by which the district court decided to order the three federal sentences imposed in this case to be consecutive. In particular, although U.S.S.G. § 5G1.2 indicated Lymon’s sentences should run concurrently, the district court instead imposed them consecutively, citing 18 U.S.C. § 3584. The court did not procedurally err because the sentencing guidelines are only advisory, the district court considered the guidelines’ recommendation before exercising its discretion under § 3584 to order consecutive sentences, and the court adequately explained why it did so. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we, therefore, AFFIRM.

I. BACKGROUND

Lymon pled guilty to three offenses charged in the same indictment: selling heroin to an undercover officer on two separate occasions (Counts 1 and 3), and being a previously convicted felon in possession of a gun (Count 2). Using the sentencing guidelines’ grouping rules, see U.S.S.G. Ch.3, Pt. D, the district court established a single combined offense level for all three convictions. That offense level led to an advisory sentencing range of 77 to 96 months in prison. Lymon does not object to that starting guideline range, but he does object to the court’s ultimate decision to vary upward from the range to a total sentence of 216 months as a result of running the sentences on each of the three counts of conviction largely consecutively instead of concurrently as called for in the guidelines.

The district court imposed a sentence at the top of that range, ninety-six-months, for each of Lymon’s three convictions, see U.S.S.G. § 5G1.2(b), and ordered the sentences for Counts 1 and 2 and part of the sentence for Count 3 to run consecutively, for a total prison sentence of 216 months. In doing so, the district court cited and relied on the statutory provision of 18 U.S.C. § 3584(b).¹

II. STANDARD OF REVIEW

Lymon is challenging the procedural reasonableness of his sentence on grounds that he concedes he did not raise in the district court. Our review, then, is for plain error. See United States v. Wireman, 849 F.3d 956, 961-62 (10th Cir. 2017). "We will find plain error only when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 962 (internal quotation marks omitted). It is Lymon’s burden to make this showing. See United States v. Francis, 891 F.3d 888, 899 (10th Cir. 2018).

III. DISCUSSION

Lymon’s appellate arguments fall into three general categories. Our consideration of these arguments begins and ends with the first plain-error inquiry because we conclude Lymon failed to establish any procedural error.

A. The district court had discretion under 18 U.S.C. § 3584 to impose consecutive sentences notwithstanding U.S.S.G. § 5G1.2 ’s recommendation that the sentences run concurrently

We reject Lymon’s first argument, that U.S.S.G. § 5G1.2"required" the district court to run his sentences concurrently (Aplt. Br. 14, 16). "Although the court must consider the guidelines when fashioning an appropriate sentence, the guidelines do not control whether sentences run concurrently or consecutively." United States v. Jarvis, 606 F.3d 552, 554 (8th Cir. 2010) (citation omitted). Notwithstanding the guidelines’ recommendation that Lymon’s sentences run concurrently, then, the district court still had discretion under 18 U.S.C. § 3584 to impose consecutive sentences instead.

"Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose ...." Setser v. United States, 566 U.S. 231, 236, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012). 18 U.S.C. § 3584(a) specifically provides that "[i]f multiple terms of imprisonment are imposed on a defendant at the same time ..., the terms may run concurrently or consecutively ...." (Emphasis added.) Section 3584(b) goes on to state that "[t]he court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in [ 18 U.S.C.] section 3553(a)."

On the other hand, it is uncontested that in this case the sentencing guidelines—specifically U.S.S.G. § 5G1.2 —provide that Lymon’s sentences should run concurrently. It does so using mandatory language: "the sentences on all counts shall run concurrently ...." U.S.S.G. § 5G1.2(c), (d) (emphasis added). Before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we held that U.S.S.G. § 5G1.2 ’s direction as to when multiple sentences run concurrently or consecutively was mandatory, like the guidelines as a whole. See United States v. Price, 265 F.3d 1097, 1109 (10th Cir. 2001). But the Supreme Court, in Booker, made the sentencing guidelines advisory rather than mandatory. See Pepper v. United States, 562 U.S. 476, 490, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011). That includes U.S.S.G. § 5G1.2. See United States v. Hollis, 552 F.3d 1191, 1195 (10th Cir. 2009) (stating that § 5G1.2(d), setting forth when sentences should run consecutively, is no longer mandatory after Booker ).

Furthermore, the Supreme Court’s "post- Booker opinions make clear that, although a sentencing court must give respectful consideration to the Guidelines, Booker permits the court to tailor the sentence in light of other statutory concerns as well." Pepper, 562 U.S. at 490, 131 S.Ct. 1229 (internal quotation marks omitted). 18 U.S.C. § 3584, along with the § 3553(a) factors it implicates, present such relevant statutory concerns. See United States v. Rutherford, 599 F.3d 817, 821 (8th Cir. 2010).

The district court, therefore, had discretion here to "deviate under 18 U.S.C. § 3584" from the guidelines’ recommendation that Lymon’s sentences run concurrently and to impose, instead, consecutive sentences after considering the § 3553(a) factors. United States v. Looper, 399 F. App'x 368, 374 (10th Cir. 2010) (unpublished); see also United States v. Redmond, 388 F. App'x 849, 854 (10th Cir. 2010) (unpublished) (citing Jarvis, 606 F.3d at 553-54 (8th Cir.) ).^{2 ,3}

Other circuits have reached similar conclusions. See United States v. Conlan, 786 F.3d 380, 394 & n.46 (5th Cir. 2015) ; Jarvis, 606 F.3d at 554 (8th Cir.) (citing our Hollis decision, as well as United States v. Eversole, 487 F.3d 1024, 1033 (6th Cir. 2007), and United States v. Kurti, 427 F.3d 159, 164 (2d Cir. 2005) ); see also United States v. Richart, 662 F.3d 1037, 1050 (8th Cir. 2011) (stating that "the now-advisory Guidelines cannot mandate ... concurrent sentencing" and " § 5G1.2 does not describe the only time a court may impose consecutive sentences" (internal quotation marks omitted) ).

We conclude, then, that the district court had discretion in this case under 18 U.S.C. § 3584 to run Lymon’s sentences consecutively, notwithstanding U.S.S.G. § 5G1.2 ’s recommendation of concurrent sentences.

B. The district court was aware that the guidelines recommended concurrent sentences and the court considered that recommendation

As just mentioned, § 3584(b) provides that the sentencing court, in deciding whether multiple sentences should run concurrently or consecutively, "shall consider ... the factors set forth in [ 18 U.S.C.] section 3553(a)." One of those factors is the guidelines’ advisory sentence. See 18 U.S.C. § 3553(a)(4). Moreover, the advisory guidelines remain "the starting point and the initial benchmark" for determining a reasonable sentence. Pepper, 562 U.S. at 490, 131 S.Ct. 1229 (quoting Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ); see also Rutherford, 599 F.3d at 821 (holding "sentencing court should consider the Guidelines calculation as a first step to finding a reasonable sentence," before considering under 18 U.S.C. § 3584 whether sentences should run concurrently or consecutively). It would be procedural error not to consider the advisory guidelines’ sentencing recommendation. See, e.g., Gall, 552 U.S. at 51, 128 S.Ct. 586.

With that in mind, Lymon next asserts that the district court erred here in failing to consider that the sentencing guidelines recommended in this case that Lymon’s sentences run concurrently. Lymon contends that the district court never identified the 77-96-month range as the "total punishment" the guidelines provided here, nor did the district court realize that the guidelines recommended concurrent sentences to impose the "total punishment." In support of these contentions, Lymon points out that neither the presentence report ("PSR") nor the district court ever mentioned "total punishment" or U.S.S.G. § 5G1.2, and the PSR did not address whether Lymon’s sentences should run concurrently or consecutively. Lymon further contends that the district court never acknowledged that, in this case, consecutive sentences represented an upward variance from the guidelines’ recommended concurrent sentences. See Conlan, 786 F.3d at 394 & n.46 (5th Cir.) (stating that "[c]onsecutive sentences can be used to achieve an above-guidelines sentence," in case where court imposed consecutive sentences under its 18 U.S.C. § 3584(a), despite the guideline recommendation of concurrent sentences); see also Jarvis,...